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I am looking for a sample petition for removal of an executor of an estate. I spoke with a family friend who is an attorney and she said I was smart enough to do this myself and didnt need to hire an attorney. I hate to continue to bother her with questions. My uncle has taken 6 years to settle an estate and little to no action has taken place. It is a very simple estate with no trusts and total value of estate is about $250,000 and there are only 4 heirs. The executor has several areas of concern as to why he should be concerned and if I can just see a sample copy of a filing I should be able to manipulate it according to my situation.

Asked on 6/15/13, 8:39 am

2 Answers from Attorneys

Removing an executor is far from being "simple" . Georgia's required standard probate forms are at http://www.gaprobate.org/forms_fillable_pdf.php and they deliberately do NOT include a form to remove an executor since that is fact dependent and no form could possibly be adequate. Sometimes the worst person to call as a lawyer is a family friend, especially if he is not a probate expert. Plain and simple, get counsel.

I would agree with Attorney Ashman. Your family friend, unless he or she is a probate litigation attorney, may mean well but I believe is mistaken. Probate is a very special area of the law. It evolved out of separate probate courts with their own set of rules. While its not impossible for someone to learn, a lawyer who does traffic tickets or bankruptcies or family law or something else just can't pick up a probate file and start to do something complicated like removing an executor in probate.

The law is so complicated anymore that lawyers are like other professionals - they just specialize in one area. Jjust like doctors - if you have a hear problem, you see a cardiologist; a kidney problem a nephrologist and so on. You would not see an OB GYN to do brain surgery on you nor would you see an orthopaedic doctor to treat your diabetes. While they all went to medical school, they are specialists now. Its the same with lawyers.

There are no forms for this at the GA site because this is not a form-driven matter. Each case is different. There are self-help resources at the GA probate site. If you live near a law library there are form books to help draft a petition.

Begin with reading the GA statutes thoroughly. You must comply with all the requirements and even though you are not a lawyer, no one is going to cust you any slack because of this. You are held to the same standard as a lawyer who went to law school. You are expected to know and follow the rules even if they are unwritten.

All legal documents follow a similar type format - there is a caption, the body of the document and a certificate of service. The petition has to be filed with the court and served not only on the executor but on all beneficiaries of the estate or any other interested party. If in doubt serve everybody. Petition is filed in county where the estate is pending.

The caption would be In: re the matter of John Doe Estate

You, the heir, are the petitioner

vs.

your uncle the respondent.

name of your document is petition to remove executor.

For the document body, you first allege who you are and who the executor is. You indicate why there is jurisdiction venue in the GA Superior Court.

You then recite the basic facts in a series of numbered paragraphs. One fact per paragraph. Who died, when, name of executor, who are beneficiaries etc. Then you get into why you want to remove the executor. You have to show a good reason for the executor not doing his job or doing his job incorrectly.

You then conclude with a "wherefore" clause asking for relief. You then sign. And if you are filing the petition must also be verified - i.e., you have to swear that all of the allegations are correct to the best of your knowledge, made under penalty of perjury or before a notary.

Then you have the document served.

If this is all beyond you then you need to hire a probate litigation lawyer. It will be less expensive if you and the other beneficiaries who all agree that the executor needs removed can get together and hire one lawyer to represent all of you.